Once again, recent incidents have revealed that the colorblind thesis,
the notion that "race" does not or should not matter and that
society and its laws are or can be colorblind, is simply unfounded.

Race discrimination in the context of the workplace received significant
media attention when an executive of Texaco, Inc. tape-recorded meetings
where company executives belittled minority employees and discussed the
unlawful destruction of documents sought by plaintiffs in a pending
employment discrimination suit. The plaintiffs alleged, inter alia, that
minority employees worked in a racially hostile environment and that
Texaco had systematically discriminated against minorities in
promotions. The meetings were secretly tape-recorded in 1994 by Texaco's
then-senior coordinator for personnel services, Richard Lundwall, and
were turned over to the plaintiffs' attorney by Lundwall after he was
dismissed from Texaco during a reduction-in-force. News accounts of the
contents of the tapes reported Texaco executives referring to African
American employees as "black jelly beans" and
"niggers" and complaining about the celebration of Kwanzaa by
Blacks. While Texaco's top official has condemned the tapes and the
statements made by company executives, one African American commentator
notes that "the Texaco tapes are to the issue of job discrimination
what the Rodney King tapes were to police brutality."

The public reaction to the jury's not guilty verdict in the O.J. Simpson
trial gave rise to the contention that "urban black juries all too
often put race above justice" and evoked cries of concern and even
outrage over the nation's intractable Black-White divide. The aftermath
of the Simpson trial was characterized by discussions of the differing
perceptions of many Whites and African Americans of the police and the
criminal justice system and the use of the "race card."

Also consider the October 16, 1995 Million Man March on Washington, D.C.
For some, the "day of atonement" was a source of pride and a
day in which African American males united to address pressing issues
facing their community. For others, the march was a self-serving
platform for Louis Farrakhan, an individual they considered to be
anti-Semitic, sexist, homophobic, and "a man whose presence and
power is an affront to all who genuinely seek a color-blind, and
color-just, America." Others asked how "this great moment in
American cultural politics was orchestrated by the demagogic leader of a
black fascist sect, while no other nationally prominent black leader
could have pulled it off?" Some considered the march to be
consistent with or, conversely, antithetical to their understanding of
Martin Luther King, Jr.'s call for a colorblind society. For Anita Hill,
bell hooks, Angela Y. Davis, and Patricia J. Williams, among others, the
exclusion of women from the march reflected Black male patriarchy and
the sacralization of masculinity.

If the country's reaction to the Simpson verdict and the Million Man
March were not enough to highlight the nation's continuing (and arguably
expanding) racial chasm, consider the recent publication of Dinesh
D'Souza's The End of Racism. D'Souza argues, inter alia, that race is
still the most divisive issue of our time; that African Americans
"continue to show conspicuous evidence of failure" in the
workplace, schools and colleges, and in maintaining intact families and
secure communities; that "circumstances of poverty and deprivation
in which blacks find themselves in America today are not the cause, but
the result, of low intelligence;" that "black culture also has
a vicious, self-defeating, and repellent underside that it is no longer
possible to ignore or euphemise;" and that "African Americans
seem woefully lacking in the skills needed to compete effectively in a
multiracial society." If "blacks can close the civilization
gap," D'Souza writes, "the race problem in this country is
likely to become insignificant." These controversial and derogatory
statements are made, incredibly, by an individual who espouses
"colorblindness" while simultaneously categorizing and
separating people on the basis of race and color.

The Texaco race discrimination charges, the Simpson trial and verdict,
the Million Man March, and D'Souza's The End of Racism: these are but a
few recent incidents highlighting the perpetual and problematic color
line as well as bringing to light American society's "integral,
permanent, and indestructible component" of racism. These and other
historical and contemporary developments, by demonstrating that
minorities continue to be subjected to numerous forms of harmful
discrimination, form the backdrop for this Article's discussion and
ultimate rejection of the colorblind thesis.

This Article focuses on one particular aspect of the colorblind thesis:
the misuse of Martin Luther King, Jr.'s image and legacy by liberals,
neoliberals, conservatives, and neoconservatives "who cheaply
invoke Dr. King's words even as they kill the substance and spirit of
his radical message." The campaign supporting the adoption of
Proposition 209, the California Civil Rights Initiative ("CCRI"),
directly illustrates the misappropriation of King's legacy. Supporters
of this anti-affirmative action proposal which calls for racial
neutrality and a colorblind America, regularly invoked King's name,
suggesting that he would have embraced such a measure. The California
Republican Party prepared a television commercial in support of the
proposition that included King's reference to his dream of a colorblind
and a content-of-character world. After opponents of the measure and
civil rights leaders, including Coretta Scott King, denounced such use
of King's words, complaining that King's legacy was being distorted, the
"I Have a Dream" segment was removed from the commercial. The
dangers of this misappropriation of "King-as-icon" and his
legacy are illustrative of the ways in which facts and historical
figures are distorted and in which iconolatry is substituted for
reasoned argument. These dangers, as well as the need to identify and
refute inaccurate distortions of history, are discussed in this Article.

Should law and public policy be colorblind? What are the tangible
effects of applying a purportedly colorblind analysis in a world in
which race and color play an undeniable role in the quantity and quality
of opportunities for people of all races? Would colorblindness
perpetuate the often crippling effects of past and present
discrimination? Can those who have benefited from the anticompetitive
advantages of de jure and de facto discrimination validly claim that
colorblindness should now be the moral and legal norm? A call for
colorblindness seems peculiar in a nation wherein race has been the most
critical, and the most powerful [issue], in effecting political change.
Race has crystallized and provided a focus for values conflicts, for
cultural conflicts, and for interest conflicts--conflicts over subjects
as diverse as social welfare spending, neighborhood schooling, the
distribution of the tax burden, criminal violence, sexual conduct,
family structure, political competition, and union membership. . . .

Whether race-consciousness is improper, illegal, or unconstitutional has
been the focus of judicial and scholarly debate between those who
contend that the Constitution and laws should be applied in a colorblind
fashion, and those who reject that notion in favor of color-aware
application of our laws.

A. Colorblindness

The colorblind thesis embodies one facet of several broad subjects of
public policy including: equality, the meaning and application of an
antidiscrimination principle, societal conceptions of permissible
private/public choices, and the definition of impermissible
discrimination. Proponents of colorblindness posit that "[c]lassifying
persons according to their race is more likely to reflect racial
prejudice than legitimate public concerns; the race, not the person,
dictates the category." The lesson to be drawn "from centuries
of race-based laws, traditions, and customs designed to subordinate
blacks is that race should seldom be used as a criterion for
decisionmaking, even when its use purports to make restitution for the
present effects of a racist past." In the constitutional context,
the Supreme Court, cognizant of the likelihood of prejudice in
race-conscious classifications, has subjected such classifications to
the strictest of scrutiny and has determined that, to pass
constitutional muster, the classification must be justified by a
compelling governmental interest necessary to accomplish a legitimate
purpose.

Colorblindness is a policy choice and not, as many assert, a moral
principle. Proponents of colorblindness include those who maintain that
"[i]f it was wrong to discriminate against black people on the
basis of their color, . . . it must be equally wrong to discriminate in
favor of black people on the basis of their color." The mantra of
the proponents of colorblindness "is Justice John Marshall Harlan's
aphorism. . .that 'our Constitution is color-blind."' Some
advocates of colorblindness believe that "merit" is the
ultimate conception of colorblindness and that "people are treated
unjustly and discriminated against 'when their merit is assessed
according to their status rather than according to the value of their
traits or products."' According to that view, any consideration of
race "remains a regrettable if necessary deviation from the ideal
of a color-blind meritocratic system."

In the aftermath of the United States Supreme Court's decision in Brown
v. Board of Education, "colorblindness" was a dominant theme
and slogan of the Civil Rights Movement. Brown was viewed as a major
victory of the Civil Rights Movement, helping to establish
"colorblindness as the central principle of the law governing
racial discrimination."

The colorblindness thesis dictates that the immutable characteristic of
skin color is meaningless. The colorblind position supports a legal
skepticism of racial categories and racial classifications. . . . The
apparent goal is to treat everyone equally without reference to context,
situation, history or culture. On its face, the position is ostensibly
neutral, in keeping with the dictates of procedural fairness and formal
equality. . . ." Again, the aphorism of colorblindness conveys the
message that the "essence of the obligation not to discriminate is
for the pertinent decision-maker not to take color or race--any color or
race--into consideration. The effect of blindness is to treat all colors
as normative equivalents. . . ."Important questions concerning the
connection of race and culture and the effects thereof on the lives of
African Americans would not be addressed in a colorblind regime, for
"colorblindness permits us to avoid any discussion of the morality
or justice of assimilation, nationalism, or cultural differences.
Instead, its proponents simply assert that justice and morality are
vested within colorblindness," and that a colorblind and
race-neutral approach "does not suffer the drawbacks of traditional
race-based action such as injustice to dispreferred groups,
stigmatization of preferred ones, and flagrant race consciousness."

B. Color-Awareness

For those who are color-aware, the "ideal of a society in which
race is as insignificant a factor as eye color" has an initial but
illusory appeal. In contrast to advocates of colorblindness, those who
are color-aware do not believe that true colorblindness can ever exist.
Rather, people who are color-aware view efforts to implement a
colorblind regime as a form of race subordination that fails to
acknowledge White hegemony even while fostering it. Of course,
color-awareness of the subordinating variety has existed throughout the
nation's history. Slavery, the legally enforced subordination of African
Americans, and the effects of past and present discrimina-ion are
harmful and powerful forces. Proponents of color-awareness do not deny
these overwhelming instances where color-awareness has resulted in the
subjugation of people of color. However, in today's society, where the
baseline is not colorblind, the laws and Constitution need to be applied
in a more remedial color-aware manner to address both the imbalance and
the reality that racial and ethnic biases still exist.

Color-awareness advocates argue that "racial justice and
colorblindness are not the same thing. Race-neutral policies are only as
good or bad as the results they produce. . . . [T]o assume that ignoring
race in making social policy will bring about justice or achieve
morality is legal fantasy." Moreover, people of color may not want
to be treated as raceless or colorless, since so much of who they are is
the result of growing up as a person of color in America. To
"e-race" individuals is to deny them a meaningful identity and
separate them from their own flesh and blood.

Adoption of a colorblind approach would permit society in general and
courts in particular to avoid accounting for and grappling with
fundamental issues raised by past and present discrimination.
Color-awareness, rather than sidestepping these issues, posits that it
is permissible and desirable to take race and color into account when
remedying the present effects of past racial discrimination. In that
regard, Title VII of the Civil Rights Act of 1964 is a color-aware
statute.

While Title VII is colorblind in the sense that an employer covered by
the statute may not lawfully consider a person's race in making
employment decisions, the statute effectively results in color-aware
conduct on the part of employers. For example, in pattern and practice
disparate treatment suits, the statistical "underrepresentation"
of Blacks can raise the inference of intentional discrimination by
employers which may cause an employer to take steps to limit its
vulnerability to such legal claims by being aware of the racial
demographics of its work force and by taking steps to address any
underrepresentation of African Americans. Also, statistical
underrepresentation in an employer's work force can be critical in
disparate impact cases wherein a statutory violation can be found even
in the absence of an unlawful employer motive. In order to avoid
exposure to liability from a disparate impact suit an employer may seek
to maintain a racially "representative" work force which
effectively requires that it act in a race-conscious manner.

Color-awareness advocates thus believe that color-awareness comports
with a reality in which a person's race and color are observable
characteristics; after all, we all can distinguish among colors. Even
the visually colorblind, who may not be able to differentiate colors,
can distinguish between races.

In sum, color-awareness best describes and most accurately captures the
historical, contemporary, contextual, and nuanced dimensions of this
nation's history and color line. As stated in Palmore v. Sidoti, it
"would ignore reality to suggest that racial and ethnic prejudices
do not exist or that all manifestations of those prejudices have been
eliminated." Those who are color-aware are more likely to see the
full dimensions of racial caste and subordination than are those who
limit their legal and social inquiries to misguided attempts at
achieving a purportedly neutral colorblind position. To borrow the words
of Stanley Crouch, colorblindness is: a fiction that shrinks our
understanding of this country by avoiding the evidence of those things
seen just about everywhere--in our politics, our mass media, on our
menus, our campuses, our showroom floors, in our department stores, our
malls, our bureaucracies, the lobbies of our hotels, our movie theaters,
at our airports, on our highways, in our advertising. Color-awareness is
not similarly flawed.

The most significant issue to be addressed by this essay is how Martin
Luther King, Jr.'s legacy has been misused in support of the colorblind
thesis. As noted in the prologue, King dreamed that one day his
"four little children [would] live in a nation where they will not
be judged by the color of their skin but by the content of their
character." This statement has been wrenched out of the social and
political context in which King lived and died and has been
misappropriated by some proponents of colorblindness who erroneously
argue that "if colorblindness was good enough for Martin Luther
King. . .then it ought to be good enough for a society that still
aspires to the movement's goals of equality and fair treatment."
This incorrect and ahistorical perversion of King's statement distorts
his actual views and legacy, and illustrates the dangers of the misuse
of "acontextual snippets."

A. King's Black Liberation Theology and Race Consciousness

King "filtered his theoretical deconstruction of hegemonic
theologies through his knowledge of the history and experience of
oppression, and thereby made that theoretical deconstruction richer,
more contextual, and ready to engage the existential realities of
oppression." That theoretical deconstruction grew out of King's
religious views as well as his leadership role within an undeniably
"colored" institution--the African American church. The Black
church was more than just a place of worship; it was "also a
bulletin board to a people who owned no organs of communications, a
credit union to those without banks, and even a kind of people's
court." Working from the base of Black liberation theology and
within an "openly and frankly religious" Civil Rights
Movement, King "advocated redemptive suffering of African Americans
through their own bloodshed." King also sought to bring into being
a community of racial equality, while fighting against the nation's
racial caste system.

B. King's "Dream" and "Nightmare" Speeches

On August 28, 1963, King gave the keynote address of the Civil Rights
March on Washington, D.C.--his well-known "I Have a Dream"
speech. Delivering the speech at the Lincoln Memorial, King began by
noting President Abraham Lincoln's signing of the Emancipation
Proclamation: "This momentous decree came as a great beacon light
of hope to millions of Negro slaves who had been seared in the flames of
withering injustice. It came as a joyous daybreak to end the long night
of their captivity." One hundred years after the signing of the
Proclamation, however, King stated that the Negro is still not free; one
hundred years later, the life of the Negro is still sadly crippled by
the manacles of segregation and the chains of discrimination; one
hundred years later, the Negro lives on a lonely island of poverty in
the midst of a vast ocean of material prosperity; one hundred years
later, the Negro is still languished in the corners of American society
and finds himself in exile in his own land.

America defaulted on its promise to African Americans of life, liberty,
and the pursuit of happiness, King continued, and had "given the
Negro people a bad check: a check which has come back marked
'insufficient funds'. . . And so we have come to cash this check, a
check that will give us upon demand the riches of freedom and the
security of justice." Referring to the "sweltering summer of
the Negro's legitimate discontent," King declared that there would
neither be rest nor tranquillity in America until Blacks were granted
their rights of citizenship. Nor would African Americans be satisfied as
long as they were the victims of police brutality, were deprived of
their dignity by "whites only" signs, or were subjected to
injustices in America.

King then turned to the dream aspect of his speech. Among those dreams
was the following: "I have a dream my four little children will one
day live in a nation where they will not be judged by the color of their
skin but by the content of their character. . . ." He expressed his
hope that in Alabama, "with its vicious racists, with its governor
having his lips dripping with the words of interposition and
nullification. . . little black boys and little black girls will be able
to join hands with little white boys and white girls as sisters and
brothers. . . ."

King's "I Have a Dream" speech arguably reflects his
color-awareness. His recognition of the fact that African Americans were
subjected to injustice and to the most base discrimination in every
aspect of their lives because they were African Americans was certainly
race-conscious. His dream and hope that Black children and White
children would be able to join hands was race-conscious both in the
identification of the discrimination that kept them apart and in the
desire for an integrated future. His awareness of and objection to harsh
racial realities, which were woven into the very fabric of his message,
arguably demonstrated that King was color-aware. Furthermore, statements
King made after his "I Have a Dream" speech more clearly
suggest that his call for a transformative change in American society
was color-aware.

In 1965, following the Watts riots, King began to doubt that Whites were
willing to work for a racially just society. Four years after the
"I Have a Dream" speech, King delivered a Christmas Eve sermon
at the Ebenezer Baptist Church. During that sermon, referring to his
1963 speech, King stated "[t]oward the end of that afternoon, I
tried to talk to the nation about a dream I had had, and I must confess
to you today that not long after talking about that dream I started
seeing it turn into a nightmare." The dream turned into a nightmare
when four Black children were killed in the bombing of a Birmingham,
Alabama church. The dream turned into a nightmare as he "moved
through the ghettos of the nation and saw [his] black brothers and
sisters perishing on a lonely island of poverty in the midst of a vast
ocean of material prosperity, and saw the nation doing nothing to
grapple with the Negroes' problem of poverty." Notwithstanding his
"deferred dreams [and] blasted hopes," King still dreamed that
"one day every Negro in this country, every colored person in the
world, will be judged on the basis of the content of his character
rather than the color of his skin, and every man will respect the
dignity and worth of human responsibility." When viewed in light of
other statements made by King, this speech evidences his color-aware
approach to eliminating the subordination of minorities in the U.S.

C. King's Other Color-Aware Statements and Views

King's color-awareness is revealed in other speeches and writings. For
instance, in his "Letter from Birmingham Jail," he expressed
his grave disappointment, not with the Ku Klux Klan or the White Citizen
Council, but with the White moderate devoted more to order than to
justice. In another speech he recounted an incident during the
Montgomery bus boycott in which a White person in Montgomery, Alabama
told King that Montgomery had been a peaceful community, that "you
people [Blacks] have started this movement and boycott, and it has done
so much to disturb race relations, and we just don't love the Negro like
we used to love them, because you have destroyed the harmony and the
peace that we once had in race relations." King responded that
Blacks had never had peace in the South, arguing that they were seeking
a positive peace with an aim at achieving complete integration into
American life, rather than a nominal integration which was little more
than token democracy.

Was King opposed to explicitly race-conscious and color-aware laws and
policies? In a 1965 interview, he was asked whether a proposal for a
multi-billion dollar program providing preferential treatment for Blacks
or any other minority group was fair. King's answer merits full
quotation: I do indeed. Can any fair-minded citizen deny that the Negro
has been deprived? Few people reflect that for two centuries the Negro
was enslaved, and robbed of any wages--potential accrued wealth which
would have been the legacy of his descendants. All of America's wealth
today could not adequately compensate its Negroes for his centuries of
exploitation and humiliation. . . . Accordingly, King's support for
affirmative action and the color-awareness of his views cannot be
doubted. His response to the question of the fairness of affirmative
action could not be more direct or explicit--King believed that
affirmative action was appropriate given the centuries of slavery and
the massive theft suffered by African Americans at the hands of those
who oppressed them.

In his last presidential address to the Southern Christian Leadership
Conference, King called for the Negro to "boldly throw off the
manacles of self-abnegation" and to stand up and say, "I'm
black and I'm beautiful," a self-affirmation "made compelling
by the white man's crimes against him." As articulated by Kwame
Toure (nee Stokley Carmichael) and Charles Hamilton, Black Power meant
that "black people must lead and run their own organizations. Only
black people can convey the revolutionary idea--and it is a
revolutionary idea--that black people are able to do things themselves.
. . . They must achieve self-identity and self-determination in order to
have their daily needs met." Thus, "black organizations should
be black-led and essentially black-staffed, with policy being made by
black people." It cannot be denied that this movement was
explicitly color-aware. "Many have come seeing 'no difference in
color,' they have become 'color blind.' But at this time and in this
land, color is a factor and we should not overlook or deny this. The
black organizations do not need this kind of idealism, which borders on
paternalism."

King embraced some of these aspirations of the Black Power movement,
particularly the call for African Americans to amass political and
economic strength to achieve their goals. Developing political awareness
and strength and electing Blacks to key political positions was, in
King's view, "a positive and legitimate call to action that we in
the civil rights movement have sought to follow all along and which we
must intensify in the future." King did not equate Black Power with
Black racism: It is inaccurate to refer to Black Power as racism in
reverse. . . . Racism is a doctrine of the congenital inferiority and
worthlessness of a people. While a few angry proponents of Black Power
have, in moments of bitterness, made wild statements that come close to
this kind of racism, the major proponents of Black Power have never
contended that the white man is innately worthless. This is not to say
that King agreed with all of the tenets of the Black Power movement, for
he clearly did not. However, his acceptance and agreement with some
aspects of Black Power illustrate his color-awareness.

Ten days before he was assassinated, King suggested to the convention of
the Rabbinical Assembly that "temporary segregation" may have
been necessary to prevent the loss of Black economic power which may
have resulted from complete integration. In his last speech, given in
Memphis, Tennessee on April 3, 1968, King urged Blacks to anchor direct
action with the power of economic withdrawal. If fair treatment by
businesses was not forthcoming, Blacks should withdraw their economic
support from such businesses. King called on Blacks to support Black
businesses: "[T]ake your money out of the banks downtown and
deposit your money in Tri-State Bank--we want a 'bank-in' movement in
Memphis. . . . You have six or seven black insurance companies in
Memphis. Take out your insurance there. We want to have an 'insurance-in."'A
King essay published after his assassination indicted White America for
its "ingrained and tenacious racism." King said that many
Whites could not understand why Blacks did not intend to remain at the
bottom of the economic structure--"they cannot understand why a
porter or a housemaid would dare dream of a day when his work will be
more useful, more remunerative and a pathway to rising opportunity. This
incomprehension is a heavy burden in our efforts to win white allies for
the long struggle."

As described in this section, in many significant respects King was
race-conscious and color-aware; indeed, the mere mention of his name
brings to mind issues of color-awareness and African American (as well
as universal) rights. King spoke "not abstractly but in a
particular context at a particular historical moment, and he meant to
make a particular historical point, one very much connected to issues of
lower caste status." Given that context, one cannot fairly derive a
colorblind principle from King's total message and philosophy. Such a
derivation could only be achieved by omissions, distortions,
simplification, acontextuality, and an overall lack of familiarity with
King's views.

Notwithstanding King's race-consciousness and color-awareness,
"people have created a mythic Martin Luther King, Jr., and
associated him with a fictional notion of colorblindness."
Opponents of affirmative action, for example, have erroneously cited and
used King's legacy as an endorsement of colorblindness, with particular
reliance on King's dream that persons would one day be judged by the
content of their character and not by their skin color.

Consider President Ronald Reagan's January 1986 radio address in which
he rejected charges that his administration had attempted to do away
with affirmative action and antipoverty programs and had weakened the
enforcement of civil rights laws. Reagan stated: We are committed to a
society in which all men and women have equal opportunities to succeed,
and so we oppose the use of quotas. We want a color-blind society. A
society, that in the words of Dr. King, judges people not by the color
of their skin, but by the content of their character. John Jacob,
then-head of the National Urban League, responded that Reagan's
interpretation of King's statement was a distortion of what King
actually meant. Jacobs stated, "For the administration to associate
the name of Dr. Martin Luther King, Jr. with the attempt to destroy
affirmative action is obscene."

In February 1986, Reagan again turned to King to support the explanation
of his administration's efforts to do away with affirmative action
programs. Reagan stated that "we want affirmative action to
continue. We want what I think Martin Luther King asked for: We want a
colorblind society. The ideal will be when we have achieved the moment
when no one--or when nothing is done to or for anyone because of race,
differences, or religion, or ethnic origin; and it's done not because of
those things, but in spite of them." Reagan's use of King to
support colorblindness is all the more disturbing given Reagan's comment
that it was too early to tell whether King was under Communist
influence.

William Bradford Reynolds, Assistant Attorney General during the Reagan
Administration, expressed the view that the "struggle continues for
a national heritage blind to skin color or ethnic background."
Reynolds argued that Brown v. Board of Education set forth the judicial
insistence on colorblindness in public school systems, and contended
that the "true essence [of the colorblind principle] was best
captured, in my judgment, by Dr. Martin Luther King, Jr., when he
dreamed aloud in the summer of 1963 of a nation in which his children
would 'not be judged by the color of their skin, but by the content of
their character."'

In 1991, during the United States Senate's hearings on the nomination of
Clarence Thomas to the United States Supreme Court, Senator Alan Simpson
asked what was wrong with a colorblind society and referred to King, the
"greatest . . . civil rights leader. . . [who] asked only that he
and his children be judged, quote, 'based on the content of their
character and not on the color of their skin,' unquote. Isn't what he
was asking for was [sic] a colorblind judgment, and isn't that exactly
what Judge Thomas is advocating?" In 1992, President George Bush
declared that he shared King's dream of a colorblind society. One
commentator, offended by Bush's comments, noted that Bush had used the
Willie Horton fear tactic and racism in his 1988 presidential campaign
and had opposed affirmative action proposals.

In a 1992 book, Jared Taylor expressed his hope that "[s]omeday the
entire edifice of race-based preferences will be torn down" and
referred to King's "I Have a Dream" speech as support for his
position. Characterizing the development of what he called an explicit
racial identity of Blacks as the "guiding light of a movement to
carve out racial privileges based on race," Taylor asserted that
race-consciousness on the part of African Americans "was a
rejection of the color-blind vision of Martin Luther King, and a
violation of the tacit agreement under which whites were abandoning
their own racial identity." Again, as detailed in Part II, King was
not opposed to race-conscious action that would have addressed the
effects of past discrimination against African Americans, and he
supported preferential treatment and the compensation of Blacks in
recognition of the unpaid slave labor that was critical to this nation's
economic development.

A more recent effort to misuse King to support the colorblindness thesis
is found in Dinesh D'Souza's The End of Racism. Deceptively reducing
King's complexity and legacy to a "vision of a society in which we
are judged as individuals on our merits," D'Souza argues that the
"mention of King's insistence that character, rather than color,
should be the basis of public decisions inspires embarrassment and
anger. . . ." According to D'Souza: "It is no exaggeration to
say that a rejection of Martin Luther King, Jr.'s vision of a regime in
which we are judged solely based on the content of our character is a
virtual job qualification for leadership in the civil rights movement
today." D'Souza also asserts that "King never abandoned his
principled position of color blindness." D'Souza's fundamental
misunderstanding of King and his failure to see King's color-awareness
is repeated throughout The End of Racism. For instance, he erroneously
argues that King was an adherent of colorblindness. For the reasons
discussed throughout this essay, D'Souza's contention that King was
colorblind is both factually and thematically wrong and cannot be
squared with King's color-awareness.

The Republican leadership of the U.S. House of Representatives has
quoted King in support of their call to eliminate affirmative action.
Attorney Al Latham, a volunteer for the anti-affirmative action
California Civil Rights Initiative, quotes King's "content of their
character" statement. House Speaker Newt Gingrich and Linda Chavez,
both conservatives, have quoted King in stating their opposition to
affirmative action programs. Other "neo-Kingists" include
California Governor Pete Wilson and California Civil Rights Initiative
Chairman Ward Connerly.

B. The Dangers of Misappropriation

The daunting task of demonstrating or calling for colorblindness in a
country in which race matters requires one to grapple with difficult
questions regarding the application of concepts of equality in a society
that "has rejected equality of income and wealth as both
unnecessary and counterproductive." As a result of incompletely
theorized agreements with respect to the meaning or meanings of
equality, some individuals will agree on a general notion of equality
without agreeing on the colorblind thesis, while others will agree on
the colorblind thesis without agreeing on a large-scale theory of
equality. Additionally, debating the colorblind thesis raises the issue
of what constitutes "discrimination." Is
"discrimination" to be understood in its ordinary, dictionary
usage such that all discrimination (whether against or in favor of an
individual or group) is unlawful, or is the term
"discrimination" to be used and understood in a technical
legal fashion such that, for example, prohibited discrimination against
members of one group is distinguished from permissible
"discrimination" (affirmative action) in favor of members of
another group? Ordinary usage would support colorblindness, while
technical legal usage would not preclude and could support an argument
for color-awareness.

Furthermore, settling on an equality principle or concept of
discrimination at any given point does not mean that those
understandings have permanence or a fixed political valence. Rather, and
because of the phenomenon of "ideological drift" identified by
J.M. Balkin, their "valence varies over time as they are applied
and understood repeatedly in new contexts or situations."
Ideological drift is illustrated by the movement of colorblindness away
from the concept offered in 1896 by Justice Harlan in Plessy v. Ferguson
and toward the current use of colorblindness as the "rallying cry
of conservatives who seek to protect white males from racial
oppression." The misappropriation of King's legacy is all the more
alluring for those who would otherwise have to address the
aforementioned issues and debate the thesis on the merits. That King
would be misused by colorblind proponents for purposes of the debate is
not surprising, for he was--and remains--the leader that whites would
have chosen for black Americans if they had the power to choose. To
white eyes, King was safe and acceptable. It is hardly accidental that
they invariably referred to him as "Dr. King," as if to draw
assurance from the credentials he had earned in the white world. King
stood for civil rights and peaceful change, as opposed to the fists of
black power. . . . He also represented a mainstream religion, Baptist,
which gave his movement moral impetus as well as political stature.
Colleges and universities literally lined up to give him honorary
degrees. It was this view of King that became "the establishment's
model of what blacks should strive for: interracial harmony, coalition
building, mutuality of interests across color and class lines."

The passage of time since King's life and death makes it easier to
misuse and abuse his legacy. The farther away extant society is from the
days of the Civil Rights Movement and the less informed society is and
remains about the specifics of those days, the more likely it is that
some will simply not know or appreciate King's real views. Because
"what is forgotten is as crucial as what is remembered," some
have found it convenient to, in Henry Louis Gates' words, "airbrush
out the more radical aspects" of King. Such airbrushing has been
applied by advocates of colorblindness who enlist King in support of
their cause. Invoking the name of Martin Luther King, Jr., in support of
colorblindness gives proponents of that theory a number of advantages.
First, it provides them with a powerful rhetorical weapon. Linking the
image of Dr. King and his efforts in the struggle against racism and
injustice to colorblindness provides that theory with a veil of
legitimacy. If not closely examined and analyzed, this veil could serve
to replace reality and set up a no question zone--after all, the
misappropriators can argue, how can one disagree with Dr. King? How can
those who are color-aware square their position with the purported
colorblind vision of the man who said that he dreamed of the day when
his children would not be judged by the color of their skin but by the
content of their character?

Despite manipulations of rhetoric, the argument that King was colorblind
is simply wrong. But in the absence of a willingness to educate
ourselves and to correct the glaring as well as the subtle errors in the
King-supported colorblindness argument, it becomes easier to misstate
and distort King's views and to substitute iconolatry and fundamentally
flawed assumptions for argument and accurate conclusions. If the
King-was-colorblind argument is not refuted, the misuse of his legacy
will continue to be used to illegitimately skew the colorblind versus
color-aware debate in favor of the former. That debate should be won or
lost on the strength of the arguments made and reasoning employed by
both sides and not on the basis of caricature, misrepresentation, and
misappropriation.

Those who disagree with the proposition that the "question of
race" is "not one of blindness, but of vision" should
search for and rely upon facts and themes that do not misappropriate
Martin Luther King Jr.'s legacy. Any such misuse of King as a symbol for
colorblindness must be recognized for what it is: a deception (knowing
or unknowing) built on misleading sound-bites, ahistorical and
acontextual "analysis" and other fundamentally flawed
premises. This deception must be highlighted and continually questioned
by those who are interested in accuracy, principled argument, and
respect for King's actual words, acts, and life.

[a]. Assistant Professor of Law, University of Alabama School of Law.
B.A. 1980, Wilberforce University; J.D. 1984, University of Pennsylvania
Law School.